Strand Systems Engineering, Inc. v. Richard Chapman--Appeal from 14th District Court of Dallas County

11th Court of Appeals

Eastland, Texas

Memorandum Opinion

Strand Systems Engineering, Inc.

Appellant

Vs. No. 11-02-00115-CV B Appeal from Dallas County

Richard Chapman

Appellee

This is an appeal from a judgment entered after a nonjury trial where the trial court entered a take-nothing judgment against appellant. We affirm.

Appellant, Strand Systems Engineering, Inc., is an engineering company. Richard D. Marter is CEO, president, and the chief licensed engineer. Appellant contracted with Dominion Classic Homes whereby appellant was to conduct inspections necessary to obtain a certificate of occupancy on houses that Dominion was building. Appellee, Richard Chapman, is a subcontractor who did inspections for appellant at the time this suit was instituted. Inspections were conducted on one such house known as the APariseau@ house in Plano. The Pariseaus complained of damage caused by improper inspections. Appellant settled the claim with the Pariseaus for $200,000. Appellant, claiming that the inspections actually had been conducted by appellee, sued appellee for breach of contract, violation of Deceptive Trade Practices Act,[1] negligence, fraud, negligent misrepresentation, malice, contribution, and indemnity.

In its first two issues on appeal, appellant challenges the factual sufficiency of the verdict. In its third issue on appeal, appellant contends that it is entitled to recover damages and attorneys fees.

The standards that apply to a review of jury findings also apply to findings made by the trial court after a bench trial. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994). In a factual sufficiency challenge, we must review all of the evidence and determine whether the challenged finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. Cain v. Bain, 709 S.W.2d 175 (Tex.1986). It is the role of the judge, as the trier of fact in a bench trial, to determine the credibility of the witnesses and the weight to be given their testimony, to believe or disbelieve all or any part of the testimony, and to resolve any inconsistencies in the testimony. Lifshutz v. Lifshutz, 61 S.W.3d 511 (Tex.App. B San Antonio 2001, pet=n den=d).

Appellant contends that appellee either failed to inspect the home or that he improperly inspected it. Appellant further claims that appellee forged Marter=s signature to letters in which he stated that the house passed inspection and was in compliance with the City of Plano standards. However, the only evidence offered by appellant was the testimony of Marter that he was familiar with appellee=s handwriting and that he believed that the letters were signed by appellee with Marter=s name. Marter testified that appellant had a contractual arrangement to pay the independent inspectors by inspection report. There were two inspection reports prepared by appellee which were admitted into evidence. An inspection report is a work order that tells who the client is, the date, the location, and what type of inspection took place. An inspection letter is a letter to the builder, in this case, Dominion, that certifies that an inspection has been done, and to the results of the inspection. There were seven inspection letters admitted into evidence which Marter testified were signed by appellee. When asked why there were inspection letters without inspection reports, Marter testified:

Well, I don=t know. I don=t know. This B this business of ours generates boxes and boxes full of documents, and...we are unable to keep track of them all. We did the best we could to find what we could.

Appellee testified that he had no recollection of doing the inspection on the Pariseaus= house. Appellee further testified that he did not sign the letters concerning the house. Appellee testified that, when he did an inspection, he turned in a report and that either he or the office manager composed a letter. Appellee testified that: AThey can=t find them [inspection reports] on these other inspections, so as far as I know, I didn=t do them.@

Based on the record before us we find that the evidence is factually sufficient to support the trial court=s judgment. We overrule appellant=s first two issues.

To recover attorney=s fees under TEX. CIV. PRAC. & REM. CODE ANN. ' 38.001 (Vernon 1997), a party must: (1) prevail on a cause of action for which attorney=s fees are recoverable and (2) recover damages. State Farm Life Insurance Company v. Beaston, 907 S.W.2d 430, 437 (Tex.1995). Here, appellant did not prevail or recover damages and, therefore, is not entitled to attorney=s fees. Appellant=s third issue is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

JUSTICE

February 27, 2003

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

[1]The TEX. BUS. & COM. CODE ANN. ch. 17 et seq. (Vernon 2002) cause of action was dismissed at trial due to lack of notice.